Emergency alert: Declaration could end shutdown – and create new challenges

Alkis Konstantinidis/Reuters
A migrant from Honduras pulled a young girl over the border barrier as they enter the United States from Tijuana, Mexico, in December. Gridlock over funding for a border wall has led the US president to suggest that he might invoke emergency powers.

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President Trump says he is not rushing to declare a national emergency as a means to build his border wall. Yet elements of both parties see it as possibly the only way out of the current standoff, which has produced the longest government shutdown in US history. The appeal, proponents say, is that both sides would save face: Mr. Trump could say he is taking steps to build the wall, while Democrats could say they stood firm against something many of their voters oppose with a passion. Such a move can be perfectly legal, and has been common in the past. “People hear ‘national emergency’ and think martial law, crisis, all sorts of horrible things,” said Steve Vladeck, a professor at the University of Texas at Austin School of Law. “But all it does is activate these other statutes that have their own predicates, their own requirements.” Still, many Democrats say it would be an extraordinary usurpation of congressional prerogatives. And some Republicans agree, seeing it as a power grab that could provide a future Democratic president with the pretext to do the same on, say, climate change.

Why We Wrote This

Using an emergency declaration to build a border wall would not only run into political opposition but also likely get snarled in litigation – so that any construction would proceed at the pace of the legal system.

President Trump says he is not rushing to declare a national emergency as a means to build his border wall. “I’m not looking to call a national emergency. This is so simple you shouldn’t have to do it,” he told reporters this week.

Indeed, there are a number of political and legal reasons why the president might not be eager to take such a step. But a major one is surely this: The invocation of an emergency as a means to circumvent Democratic opposition and jump-start work on his long-sought barrier would be a fateful decision. It would almost certainly expand and deepen conflict on the issue, not end it, at a time when Mr. Trump’s staff and cabinet are riven by shake-ups and special counsel Robert Mueller’s investigation seems to be rolling toward major revelations.

Trump has always embraced chaos and distraction as business and political weapons and may not shy from an emergency declaration in the end. Such a presidential move can be perfectly legal, and has been common in the past. Some presidential “emergencies” last for years. 

Why We Wrote This

Using an emergency declaration to build a border wall would not only run into political opposition but also likely get snarled in litigation – so that any construction would proceed at the pace of the legal system.

The problem is the current context, say some legal analysts. The president had two years of GOP control of Congress to push through border wall funding. What sort of emergency now requires the sudden beginning of construction? More troubling, critics point out that in some nations, emergencies have been pretexts for authoritarians to increase their power – and Trump has often appeared to chafe at constitutional limits on his scope of action.

“If it were another president, I would say OK, this is silly, it should be stopped – but you wouldn’t talk about it being a threat to democracy,” says Chris Edelson, an American University government professor and an expert on presidential emergency powers. “The reason you would in this context is because of who Trump is.”

The politics of ordering an emergency declaration to build the wall are more complicated than most issues in today’s polarized Washington. Many Democrats oppose such a move on grounds that it would be an extraordinary usurpation of congressional prerogatives. Some Republicans agree with this position, seeing an emergency declaration as a power grab that could provide a future Democratic president with the pretext to declare an emergency and act on, say, climate change rules.

Presidents have invoked emergency powers some 58 times since Congress codified and reformed laws dealing with the issue in 1976. None have involved paying for something a president wanted to do after that president had failed to win approval from lawmakers, according to Professor Edelson.

The public does not seem to be enthusiastic about an emergency declaration, either. A just-released Washington Post/ABC poll finds respondents opposed to such a declaration by more than a 2-to-1 margin, 66 percent to 31 percent. A CNN survey produced similar results.

Yet elements of both parties see a presidential declaration of an emergency as possibly the only way out of the current standoff, which has already produced the longest government shutdown in US history. The appeal of this route, proponents say, is that both sides would save face: Trump could say he looked strong and is taking steps to build the wall, while Democrats could say they stood firm against something many of their voters oppose with a passion.

Sen. Lindsey Graham (R) of South Carolina, for instance, has urged Trump to go the emergency route. On Sunday, he said the president should reopen the government for a short period, and then declare an emergency if the Democrats don’t respond with agreement on a border wall deal.

The National Emergencies Act

If Trump did invoke emergency authority to direct the military to begin wall construction, he would most likely base his actions on powers granted by the National Emergencies Act of 1976.

This statute, enacted into law in the wake of Watergate abuses, was intended to channel presidential emergency declarations and place limits on what chief executives can and cannot do in such a situation. In a way, it is a legislative portal.

The National Emergencies Act (NEA) doesn’t act as carte blanche for a president to do whatever he wants. Declaring a national emergency allows a president to unlock new authorities and powers on, theoretically, a temporary basis. Many of those authorities and powers are specific to particular factual contexts, said Cristina Rodriguez, a professor at Yale Law School, in a conference call organized by the American Constitution Society.

“There are hundreds of authorities that can be triggered by a declaration,” she added. “Most of them are not applicable here.”

Four of them could be. One is an emergency fund in the Immigration and Nationality Act that can be triggered in the event of an influx of immigrants beyond what the system can handle. Another is an authority that allows for emergency construction of a military construction project if a secretary determines the project is vital to national security. However, given that those two authorizations only permit $10 million and $50 million in funding, respectively – and Trump is demanding more than $5 billion for a border wall – Professor Rodriguez doesn’t think they are likely to be used to justify an emergency declaration.

More likely to be invoked, she says, is an emergency declaration requiring the use of the armed forces. Then, there is a statute allowing the Secretary of Defense to authorize military construction projects “necessary to support such use of the armed forces.”

There is also a statute allowing for, in the event of an emergency declaration, the president to terminate Army civil works projects deemed nonessential and applying those resources to “civil defense projects that are essential to the national defense.”

Under the NEA, the declared emergency ends automatically after a year, unless the president publishes an extension notice in the Federal Register. Congress can also terminate the action by passing a joint resolution. This would likely require a two-thirds majority, as the president could, and likely would, veto such a move.

The United States is currently operating under a number of NEA-derived emergencies. Most deal with declarations of economic sanctions against individuals or foreign companies.

None of this means a Trump border wall emergency move would be a routine bureaucratic operation.

“The invocation of such authorities for that purpose would raise a variety of novel legal issues,” concludes a new Congressional Research Service legal analysis of whether the Department of Defense could build a border wall.

Legal challenges

One question is whether the current situation at the border is a true emergency. Trump insists that it is, and says that the border must be militarized and defended if the US is to have a country at all. Courts have generally given the executive branch a lot of leeway when it comes to emergency declarations.

But illegal crossings at the US southern border have been declining for decades. In 2017, they were at their lowest point since 1971. Most drugs are trucked through points of entry, not tossed in bags over a border fence. If terrorists are sneaking in from Mexico, their number is in the single digits, according to the government’s own data.

The involvement of the military in wall-building would be a huge complicating legal factor. US law generally prohibits the use of armed forces in routine police actions. The NEA is unclear on whether it’s OK to use them in non-routine situations, and whether it’s OK to use duly appropriated Pentagon dollars as a slush fund for operations not authorized by Congress.

Litigation brought by private landowners would be a nightmare. Construction of a true border wall would require seizure of private farms and fields under eminent domain precedents. A number of Texas residents who would be affected have already vowed they will fight it.

Thus, even if the president invokes an emergency in this instance, construction would not proceed with urgency, but at the speed of the American legal process. In short, slowly. Or perhaps never.

“As a purely practical matter, will the wall get built? I am not so sure,” says Andrew Rudalevige, a professor of government at Bowdoin College in Brunswick, Maine, who focuses on presidential and executive branch management.

And in the end, this might be the biggest obstacle to use of emergency powers to build a wall. The courts might allow its construction eventually, but they might not. Does Trump want a real wall, or the issue of the wall to argue about? That might be the question.

“The main risks are political,” sums up Edelson, author of the 2013 book “Emergency Presidential Power: From the Drafting of the Constitution to the War on Terror.”

Some experts say that as a purely legal matter, it wouldn’t be that norm-shattering an act. Indeed, if it allows the longest government shutdown to end, then it could on aggregate be a good thing, said Steve Vladeck, a professor at the University of Texas at Austin School of Law, in the American Constitution Society conference call.

“People hear ‘national emergency’ and think martial law, crisis, all sorts of horrible things,” he added. “But all it does is activate these other statutes that have their own predicates, their own requirements.”

The larger issue raised by the idea of a national emergency declaration to build a border wall is what it reveals about how much power Congress has delegated to the executive branch.

“What I find is much more alarming than specific authorities the president might use is the general dysfunction in Washington that could lead us to this point,” Professor Vladeck said.

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